CORCORAN— A federal judge has ruled that the government must pay farmers in the arid Central Valley for depriving them of irrigation water to protect endangered fish.
Growers had argued that by using water they paid for to protect chinook salmon and delta smelt, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service effectively took fields out of production and took money from farmers.
“It was water that was bought and paid for,” said Michael Nordstrom, a lawyer for Tulare Lake Basin Water Storage District, which filed the suit.
“The court has ruled they are clearly entitled to do it under the Endangered Species Act, but if they do it they have to pay for it.”
The farmers sued in 1998, claiming the federal government took $25 million of water over a period of three years ending in 1994 by shutting down pumps that divert water south through the valley to Los Angeles from the San Joaquin-Sacramento River Delta.
On Monday, U.S. Court of Federal Claims Judge John Paul Wiese in Washington, D.C., ruled the farmers are protected under the Fifth Amendment, which prohibits the government from taking private property without paying for it. A hearing to determine what the government owes the farmers has not yet been scheduled.
The ruling could have broad implications for farmers and urban water users in western states, where federal rules protecting wildlife are increasingly in conflict with water allocations.
“For us as a grower it’s big,” said Fred Starrh, a cotton farmer in Kern County. “For the growers across the United States it’s big. If it stands, I think it could bring reasonableness to the process. We’ve just been sitting here getting hammered.”
Interior Department lawyers were studying the opinion and planned to discuss it further next week, but do not believe it has wide implications throughout the West, said spokeswoman Stephanie Hanna.
Starrh pays about $3 million a year to irrigate his 12,000-acre ranch. He pays the total by June for water that may never be delivered.
This year he is idling 3,200 acres because he only expects a third of his contract. He said he will only get a partial refund for the water he doesn’t receive.
The cost of maintaining a certain water level in the delta to protect species could easily amount to tens of millions of dollars a year for water users. In addition to water expenses, there are other factors such as lost production and lost wages – factors that hurt the state’s economy.
“At least now they’ll have to look at what they’re doing and say it’s going to take X number of dollars to take this water,” Starrh said.
California Trout, one of a raft of environmental groups that wrote briefs opposing the farmers, said the problem is that too much river water is allocated for other uses.
“They’re dividing up water to the extent that they believe the water is all there and it’s not,” said Jim Edmondson, the group’s conservation director. “In their vernacular I don’t know how you get 40 pounds of potatoes in a 20-pound sack.”
In the state’s complex water picture, divided into myriad districts by arcane rules and administered by the federal and state contracts, it was not immediately clear what impact the ruling would have on districts that supply households or those that get their water from the federal government.
In many instances, federal water contracts may be outside the scope of the suit because users only pay for what they receive.
“Our contracts are written in a way that allows us to short our contractors under certain circumstances,” said Jeff McCracken, spokesman for the U.S. Bureau of Reclamation, which supplies 20 percent of the water to irrigation districts and urban users in California and is the largest supplier of water in the West.
Metropolitan Water District, which purchases half the water from the state project for 17 million users in Southern California, was not a plaintiff in the suit and did not expect to benefit from the decision.
Steve Arakawa, manager of water resources, said the Los Angeles agency is trying to work with the state to ensure a reliable water supply while also protecting the environment.
On the Net:
Judge Wiese’s opinion: http://www.law.gwu.edu/fedcl/Opinions/Wiese/01/Tulare.pdf